Comment by John J. Hogerty II
Several years ago, the distinguished legal scholar Francis de Zulueta stated that as students, professors, or practitioners of the law we are all-civilians and commoners alike-the “heredes necessarii” of Roman law. Heres necessarius had a very specific meaning at Roman Law: If a testator had no heirs, he could leave his estate to one of his slaves who then became free and stepped into the shoes of the master. The slave could not reject his inheritance, even if he wanted to. This appointment could occur even where the testator was bankrupt, in which case it was called hereditas damnosa. If the bankrupt testator had no heirs, he could designate one of his slaves as heir, who would then be saddled with the obligations of his master at the master's death. This appointment satisfied the Roman belief that there had to be universal succession.
Professor de Zulueta's sentiment is clear: Like it or not we are stuck with our Roman-law inheritance. The influence of Roman law on the civil law has never seriously been doubted. Recent scholarship has turned up similar evidence with respect to the common law. Roman law seems to have contributed to the development of the common law during both its formative period in England and its maturation in the United States. “It is this peculiar ability of the Roman law of living in symbiosis (union) with diverse legal organisms that has promoted its functioning as the medium of legal science.”
Since we have no choice as to our inheritance, and cannot escape its influence, we should not seek to ignore its present value and importance. A course in Roman law offers enormous benefits to civil- and common-law students alike. As civil-law students have traditionally been required to study Roman law, we will not focus on them here. This Essay will outline the value of a Roman-law course to common-law students, who are rarely even given the opportunity to study Roman law. I will then propose how such a course should be taught.
At the outset it must be admitted that Roman law is not a prerequisite for finding a good job or for succeeding in legal practice for either common- or civil-law students. It is also true, however, that “[t]o conceive of the value of knowledge as based upon its utility for the acquisition of wealth or material success is to completely overlook the chief purpose in all education—namely, the development of character as well as intellect.”
About the Author
John J. Hogerty II.
Citation
66 Tul. L. Rev. 1889 (1992)